You’re confused, right? Boris Johnson just lost a Supreme Court case and what the heck happens with Brexit? You’re right to be confused, everyone over here is too. What actually happened is the U.K. version of Marbury v. Madison.
That’s the case where the United States Supreme Court said that the U.S. Supreme Court gets to say what the law actually is with respect to the Constitution. The U.K. has only had a Supreme Court since 2009 and the law only passed in 2005. Really what this case, nominally about proroguing Parliament (i.e., when should it close down for a bit then start a new session), is about is who is top dog? The executive, legislature, or court? Given that the answer came from the court, as with Marbury, the answer was the court. It came in the same sort of timescale as in the U.S. as well. The Constitution took effect in 1789 and Marbury v. Madison in 1803 isn’t all that different from the U.K. Supreme Court’s timeline.
It’s almost as if a new court looks for an opportunity early on to insist that the new court gets to say what’s what.
With that background, we’ve still got that problem. What does anyone do about Brexit? As I pointed out a few weeks ago, there’s no majority in the House of Commons in favor of any particular solution. There’s only a larger or smaller one against any particular solution.
Not leaving the EU won’t gain a majority. Leaving with this or that deal won’t. Leaving without one won’t. But one of those three has to happen.
The answer is clearly that there has to be an election and see whether a new House does in fact have a majority for any course of action. Unfortunately, recent law changes mean that we have to have a majority to vote for an election, and that’s not happening either.
Perhaps trickery will work.
The government has been indicating to all and sundry in briefings that this is what they will do. They’ll have a Queen’s Speech, and saying that Brexit will happen will be part of the speech. At which point, the House must either vote for it, and by extension vote for Brexit, or vote against the speech.
This would trigger the resignation of the government. After 14 days, that would almost certainly mean an election.
How to make the leap to the Brexit escape hasn’t changed. But something very important about Britain just has. We now have a constitutional court in a manner that we never did, just as we never have had a written constitution. Everything has been a balance of conventions and agreements.
This is not to the taste of those who like everything written down, of course, but it was usefully flexible over the centuries. We managed to break the political power of the landed aristocracy in the House of Lords without a bloody revolution, for example. We just managed that power down over the years until it became a revising chamber, not a blocking one. The monarchy has no political power at all any more, although we did execute one monarch and toss another overboard to get to that.
There is an amusing point to this too. The entire argument being promulgated is that Parliament is sovereign. The government can’t do as it wishes over Brexit, nor can the people through a referendum. It’s only Parliament that can decide.
Okay, fair enough. But the end result is that we’ve now got a Supreme Court insisting that it has the power to overrule Parliament. To win against Brexit has meant giving up parliamentary sovereignty. There might be a certain darkness to it, but that is amusing.
As to what will happen about Brexit? The only solution will come after an election. It might be one that Boris is able to trick into being soon. It might be one some way down the road. But one thing that hasn’t changed is the essential underlying core of British democracy.
No Parliament can bind its successor. Whatever this shower of flapjaws decides can, and will be, undone by the next group of parliamentary fools. When is the question, not whether.
Tim Worstall (@worstall) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a senior fellow at the Adam Smith Institute. You can read all his pieces at The Continental Telegraph.
